An analysis of the City’s granting approval of additional height to 40 feet, 8 inches at 770 E. Palmetto Park Road.
Over the last few years, residents have become more anxious and angry with the direction taken by our elected and appointed officials. As a result there has been a surge of actions filed with third party agencies attempting to stem the tide of the political class; a ‘developer friendly’ political class who seem to reject the residents’ sentiment at every turn. Today’s analysis will be the Circuit Court action filed by ‘adversely affected’ residents challenging the May, 2015 City Council action on a property located at 770 Palmetto Park Road.
The style of this case is:
Craig Goldberg and Shannon Shubin Whittenberg v. City of Boca Raton, Petition of Writ of Certiorari in the Circuit Court for the 15th Judicial Circuit Case#2015CA007264 (see attached links below).
Originally filed on June 26, 2015, the residents, through counsel, amended the complaint on August 29, 2015. Links have been provided below to the City’s response of December 14 and the Resident’s final reply of January 4. These documents are an interesting read on the legal positions; the evidence presented; the applicable law; and the arguments/conclusions asserted.
For purposes of this essay, terms like writ, petitioner, standing, burden of proof, substantial competent, procedural due process, ex-parte communications and more will be translated into more reader friendly terms while trying not to alter the essence of the arguments.
The residents’ are requesting the Court to ‘quash and remand a quasi-judicial approval of the City of Boca Raton City Council made on May 27, 2015 approving a 40 foot 8 inch tall building that exceeds the 30 foot height limit in the B-1 zoning district…”
Under review is City Code Section 28-780 which states in part that “No building structures, or part thereof, shall be erected or altered in a B-1 district to a height exceeding 30 feet; provided that a building may reach a height not exceeding 50 feet“ if the granting of the additional height is not “injurious to surrounding property” and… “in accord with the spirit and purpose of this chapter.” The connector ‘and’ requires that both these elements must be satisfied by the applicant in order for the approval to be granted.
The residents argue that the City Council departed from the essential requirements of the law by placing the burden to produce evidence of injury on the residents; a mistaken shifting of the burden of proof.
An additional concern raised by the residents was the failure of the council to allow questioning of Deputy Mayor Weinroth regarding his communications with relevant persons not being presented by the applicant for testimony. These persons are people he met with on an international exploratory trip to Israel and an arranged tour of the ‘My Israel Museum’; a crucial element intended to be a feature at the 770 Palmetto Park Road location. At the May Council hearing, Mayor Haynie prevented residents from asking Deputy Mayor Weinroth about these ex-parte communications. Resident contends that the Mayor’s action prevented any meaningful understanding and inquiry of Deputy Mayor Weinroth’s posture in this matter.
In the City’s response, an argument is made that there was ample evidence to support the City Council’s decisions. The City concedes that proving the two elements of section 28-780 is on the applicant and contends that the evidence presented meets the burden. A review of the response arguably provides commentary on the issue of ‘injury’ but is mostly devoid of evidence supporting the 2nd element of ‘spirit and purpose’.
On the issue of the City’s failure to allow residents the opportunity to explore Weinroth’s communications with third parties, the City contends that the resident was not denied due process because the disclosure was fully made at the beginning of the hearing; This is dubious assertion that seems in opposition to the facts and the prevailing Florida Supreme Court precedent.
Pages 18 – 21 of the City’s response is a worthwhile read, for those who care to formulate a more informed opinion on the issue of Weinroth’s disclosure and his non-transparent posture. To date, Mr. Weinroth has never responded to the on-going residents’ request for additional information on the details and circumstances of his travels to Israel.
Finally, the January 4 resident reply proffers that neither the city nor the applicant met their burden of demonstrating that no ‘injury’ would attach by the granting of the additional height and the Code’s ‘accord with the spirit and purpose’ requirement.
BocaWatch will continue to keep you informed and educated on this case’s progress. BocaWatch will also be bringing you analysis of other legal actions that have been filed or will be filed against our ‘developer friendly’ City Council. Victories in court will be as important as victories in elections in order to bring about a culture change to a ‘resident friendly’ City Council.
An item that also needs our attention is the CURRENT activities of the Planning and Zoning Board. The P & Z board has been asked to formulate suggestive changes to City Code 28-780. This topic has been discussed at the P & Z meetings in both November and December. The discussions so far would seem to indicate that pro-development forces both on the board and in the audience are leaning towards establishing the B-1 standard at 50 feet with some setback formula being formulated.
This height change needs to be stopped….There is no need to expand the height provision in the B-1 sector east of the intracoastal….
For those residents living in neighborhoods east of the intracoastal and north and south of Palmetto Park Road on A1A, their quality of life will be dramatically impacted.
Couple this with the approved 4 story, 10,000 square foot entitlement granted in the 2500 N. Ocean Blvd. debacle and there are now some 10,000 city residents/voters living east of the intracoastal who are aware, angry and awaiting the March 2017 election; an election to vote out this group of ‘developer friendly’ elected officials…..
March 2017 cannot come soon enough….
Al Zucaro, Publisher
Links to court filings:
Writ Docs Filed in Court by RCA’s Ralf Brooks and City
Latest is at the top
JAN 4, 2016 – RALF BROOKES REPLY TO CITY
DECEMBER 14, 2015 LINKS TO CITY RESPONSE:
CITY RESPONSE SUPPLEMENTAL DOCUMENTS
AUG. 29, 2015 LINKS TO AMENDMENT & ATTACHMENTS ARE:
AMENDED WRIT FILED BY RALF BROOKES
ATTACHED TO AMENDMENT BY RALF BROOKES
APPENDIX TO AMENDMENT BY RALF BROOKES
JUNE 26, 2015 ORIGINAL WRIT BY RCA LINK:
Riviera Civic Association, Inc. (RCA) filed by Ralf Brookes WRIT CERTIORARI IN THE CIRCUIT COURT FOR THE 15th JUDICIAL CIRCUIT IN PALM BEACH COUNTY.
INJURY IS IN THE EYE OF THE INJURED
As most readers are aware, there is a great stink hanging over City Hall regarding the subversion of the 4035 ordinance which the voting public put in place back in 1993 by referendum – Open Space Requirements. But there is more to share and witness of the more than cozy relationship between the City, its boards and developers. In the Planning and Zoning Board meeting of 1/7/16 the issue was raised about the height of buildings in the corridor that exists between the Palmetto Park Bridge and the beach. Residents living in the corridor want building height limited to 30 feet because additional height will cause them “injury” much the same as the obvious injury inflicted on homeowners on Boca Raton Road to the north of Palmetto Promenade – they now live in the shadow of that behemoth.
So, in its infinite, developer friendly, anti-resident mode, the Planning and Zoning Board was asked by the lawyer for a local developer to omit the word injury from consideration in future development. So, what does that mean? Basically, it gives the city and developers the right to run over residents and their right to enjoy their property at the expense of the greedy. It forces residents to endure traffic congestion, forcing them to live in the shadow of tall buildings, suffer from lack of parking and, most importantly, residents lose their right to a fair and equitable seat at the decision table while living in or near downtown
It is all too obvious – Our City Council, Planning and Zoning Board and City Management are, we feel, in the pockets of local developers. What other conclusion can we draw? All the public wants is to have a say in the development of our lovely community and the downtown. We are denied this opportunity at every turn as is evidenced by the obfuscation of the meaning of 4035. Now we potentially lose our right to claim “injury” when developers bring forth projects that hurt our land values, peace and enjoyment of our homes. This has got to stop.
Riviera Civic Association – East of the Intracoastal Waterway